Opinion
NO. 2019-KA-0186
09-25-2019
STATE of Louisiana v. Trae WILLIAMS
Leon Cannizzaro, District Attorney, Kyle Daly, Assistant District Attorney, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA Meghan Harwell Bitoun, Louisiana Appellate Project, P. O. Box 4252, New Orleans, LA 70119, COUNSEL FOR APPELLANT
Leon Cannizzaro, District Attorney, Kyle Daly, Assistant District Attorney, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA
Meghan Harwell Bitoun, Louisiana Appellate Project, P. O. Box 4252, New Orleans, LA 70119, COUNSEL FOR APPELLANT
(Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins )
Judge, Edwin A. Lombard
This appeal is from a manslaughter conviction. After review of the record in light of the applicable law and arguments of the parties, the defendant's conviction is reversed.
Relevant Procedural History
The defendant, Trae Williams, was charged on October 2, 2014, with the second-degree murder of Eddie Salvant, III. The defendant pleaded not guilty at his arraignment on October 15, 2014. The defendant's motions to suppress the identification, statement, and evidence were denied on October 21, 2015.
The jury was unable to reach a verdict in the defendant's first trial and ended in a mistrial on June 14, 2017. At his second trial, which began on April 23, 2018, the jury returned a responsive verdict on April 24, 2018, by a 10-2 vote. The defendant's motions for new trial and for post-verdict judgment of acquittal were denied and, after being adjudicating a second-felony offender on July 27, 2018, he was sentenced to sixty years at hard labor. On September 20, 2018, the district court denied the defendant's motion to reconsider the sentence and granted his motion for appeal.
The defendant pleaded guilty on October 21, 2011, to illegally carrying a weapon, possession with intent to distribute cocaine, possession of marijuana 3rd offense and possession of schedule IV drugs in case no. 507-425, Section "H" of Criminal District Court of Orleans Parish.
This appeal was timely filed.
Relevant Evidence Adduced at Trial
On April 9, 2014, the New Orleans Police Department (NOPD) received a 911 call at 4:06 PM reporting a shooting at the intersection of Eliza and Lebouef Streets in Algiers. Detective Theophilis Kent responded, arriving at the scene approximately forty-five minutes after the shooting, and conferred with the responding officers and crime lab personnel on the scene. Detective Kent testified that when he left the crime scene that day, he had one name of a possible suspect, although no witnesses voluntarily spoke with the police officers. Further canvassing of the neighborhood the next day for witnesses and surveillance video was fruitless.
The recording of the 911 call, which was played for the jury, indicates the homicide was reported at 4:06 p.m. on April 9, 2014.
A bullet was recovered from the victim's body during the autopsy but no murder weapon was found and no DNA evidence links the defendant to the shooting. The State's ballistics and firearms expert Detective Sean McElrath identified a report he authored which indicated that the copper-jacketed projectile collected during the autopsy was submitted to the crime lab for testing and determined to be from a .38 caliber bullet. Because the murder weapon was not recovered, the lab was unable to make a comparison analysis between the recovered bullet and a weapon. The State also introduced the transcript of the forensic pathologist's report indicating that the victim suffered two gunshot wounds : a non-fatal wound to his left thigh and the fatal wound, which entered the victim's body at the top of the left shoulder at the base of the neck, perforating the cervical inlet, the first rib, the upper lobe of the left lung, the aorta, diaphragm, stomach, liver and small bowel.
A month later (May 8, 2014), Detective Kent interviewed Kendall Sylve who was incarcerated in Orleans Parish Prison on a pending burglary charge. During the interview, Mr. Sylve identified the defendant in a photographic line-up but refused to memorialize the identification by signing the photo. In mid-May, however, Mr. Sylve contacted Detective Kent, indicating he had additional information which he was willing to supply in the presence of his attorney. Accordingly, on June 26, 2014 Detective Kent met with Mr. Sylve and his defense counsel, as well as a representative of the District Attorney's Office. At this meeting Sylve gave a recorded statement, identified the defendant as the shooter from a photo lineup, and signed his name to the photo he identified. Based on this identification, an arrest warrant was issued for the defendant.
The defendant's father and victim's half-brother, Curtis Williams, Jr., testified that he was the son of Verna Williams and Curtis Williams, Sr., that he was serving a seventy-eight year sentence for attempted murder, and that he had talked to his mother (now deceased) after his brother was shot. Ms. T'she Salvant identified herself as the victim's daughter and the defendant's cousin. Ms. Salvant stated a couple of days before the shooting she received a phone call from her father who was angry and stated that he had been in an altercation with his stepfather, Curtis Williams, Sr. . When she arrived at the house at 1422 Eliza Street, her father told her he had dialed 911 because of the altercation and that "Trae and Curtis was going to kill him." She conceded that the police never arrived and, although she requested them, she never received any documents related to the purported 911 call. She related that her father visited his mother daily but did not get along with his stepfather. In response to the prosecutor's question, she agreed that the defendant and his grandfather were close, explaining that the defendant grew up in the house with his grandparents and "Curtis practically raised Trae."
The audio of the jailhouse call was played for the court out of the jury's presence.
Mr. Sylve testified that the week "the incident went down," he was staying in a friend's house next door to the Williams' home on LeBoeuf Street looking for and using heroin. He acknowledged that he was a junk during that period of his life and that he agreed to testify in exchange for plea bargains he received in relation to his 2014 burglary and 2015 drug charges. According to Mr. Sylve's testimony at trial, on the afternoon of the shooting, he was playing basketball at the intersection of Lebouef and Eliza streets "waiting on the dope man to get there" when he heard the victim and his mother arguing in the Williams home. He next saw the defendant enter the house as Mr. Salvant exited it and, moments later as he was chasing a ball towards the corner, he heard shots and looked up to see the defendant shoot his uncle. Mr. Sylve insisted that he immediately returned to playing basketball after the shooting and remained there (very near the spot where the shooting occurred and, thus, the victim's body) the entire time the police were on the scene but the police never spoke to him or questioned him.
Mr. Sylve was sentenced to five years on each of the charges. He was on parole at the time of this trial.
Mr. Sylve acknowledged that he had been in a fight with Mr. Salvant the day before his murder over a DVD player and that a family member suggested his name to the police as a suspect after the shooting. Accordingly, when the police came to see him in jail a month later after he was arrested on theft charge, his main focus was to avoid being charged with the murder. Thus, he told Detective Kent that he heard shots but did not see the shooting, although he indicated that after the shooting the defendant walked past him. Two days later, however, Mr. Sylve's charge was upgraded to burglary and he requested a second meeting with Detective Kent. At the second meeting with Detective Kent, attended by Mr. Sylve's attorney and a representative from the District Attorney's office, Mr. Sylve identified the defendant in a photographic line-up as the shooter and executed a Memorandum of Understanding regarding his burglary charge. Subsequently, while out on bond for the burglary charge, Mr. Sylve was arrested for heroin and, again, negotiated a plea deal with the State in exchange for his continued cooperation in this matter.
Discussion
On appeal, the defendant raises four assignments of error: (1) the district court erred in allowing inadmissible hearsay at trial; (2) the district court erred in denying the inclusion of two requested jury charges; (3) the defendant's conviction by a 10-2 jury vote was in violation of the Equal Protection clause of the Fourteenth Amendment; and (4) the defendant's 60 year sentence at hard labor is unconstitutionally excessiveness.
Assignment of Error 1
The defendant argues that the State attempted to bolster Mr. Sylve's testimony by eliciting inadmissible hearsay from witnesses suggesting that more evidence existed to corroborate Mr. Sylve's identification of the defendant as the shooter.
Applicable Law
Pursuant to La. Code Evid. 801(C), " ‘Hearsay’ evidence is a statement, other than one made by the declarant testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." It "rests for its value upon the credibility of the out-of-court asserter." State v. Wille, 559 So.2d 1321, 1329 (La. 1990) (citation omitted). A primary justification for the exclusion of hearsay is that the defendant "has no opportunity to cross-examine the absent declarant to test the accuracy and completeness of the testimony." Id. Moreover, the party who purportedly made the statement that is being repeated in court by another party was not under oath at the time of the statement. Id. In addition, pursuant to the confrontation clause of the United States Constitution, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him," U.S. Const. amend. VI, and when an assertion by one party is presented through the testimony of another party there is no opportunity for confrontation. Id.
Reversal of a defendant's conviction is appropriate when there is "a reasonable possibility that the evidence might have contributed to the verdict." State v. Skipper, 2011-1346, p. 10 (La. App. 4 Cir. 10/10/12), 101 So.3d 537, 544 (citation omitted). To determine whether the admission of hearsay was harmless error, this court must consider "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." State v. Legendre , 2005-1469, pp. 9-10 (La. App. 4 Cir. 9/27/06), 942 So. 2d 45, 52 (citation omitted).
Hearsay admitted at trial
In the State's opening statement, the prosecutor asserted:
So, ladies and gentlemen, Detective Kent, like it has gone so far, has a suspect. His suspect has been confirmed. But he at this point, because he failed to memorialize the photograph, he does not have enough to obtain an arrest warrant for this individual.
Crime Stopper tips roll in. (emphasis added).
Clearly, the implication of the prosecutor's reference to "tips roll[ing] in" is that the tips named the defendant as the perpetrator of the crime, thus supporting Mr. Sylve's identification of the defendant as the shooter.
Again, during Detective Kent's testimony, the prosecutor asked:
"And those Crime Stopper tips confirmed that the identification of Mr. Salvant (sic) made, correct?"
The defendant's hearsay objection was sustained by the district court and Detective Kent was prohibited from responding to the question, but again the clear implication of the prosecutor's question, particularly in light of the earlier remark during his opening statement referencing "tips rolling in," was that Detective Kent would confirm that the tips named the defendant as the perpetrator of the crime.
In addition, the district court erred in allowing Ms. Salvant's testimony regarding her father's statement several days before the shooting under the "present sense impression" exception to the hearsay rule. Pursuant to La. Code Evid. art. 803(1), a "present sense impression" is a "statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." This exception is strictly interpreted. As the Louisiana Supreme Court explained, "[t]he critical factor is whether the statement was made while an individual was ‘perceiving’ the event or ‘immediately thereafter,’ " i.e. , "[t]he statement may follow ‘immediately’ after perceiving an event, allowing only for ‘the time needed for translating observation into speech. " Buckbee v. United Gas Pipe Line Co. Inc. , 561 So. 2d 76, 84 (La. 1990) (quoting McCormick on Evidence, Sec. 298 ) (emphasis added).
See 1988 Comment to La. Code Evid. 803(1) ( Paragraph (1) codifies prior Louisiana law and is based on Federal Rule of Evidence 803(1). The immediacy requirement of this exception should be strictly interpreted. C. McCormick, On Evidence § 298, at 862 (3d ed. 1984).)
In this case, Ms. Salvant was allowed to testify as to her father's statement but, according to the narrative she presented, the statement cannot be characterized as a "present sense impression." Ms. Salvant testified that she spoke to her father on the phone at some point after he had an altercation with his stepfather, although while he was still angry, and he told her there had been a fight and that he had called 911. She then went over to her father's house. It was only after she arrived at his home that Mr. Salvant made the statement that his stepfather and his nephew (the defendant) were going to kill him. To be admissible under the "present sense" impression, however, the hearsay statement must have been made immediately after an event occurred, that is within the time period necessary to formulate the words to describe an event. As described by Ms. Salvant, a considerable amount of time passed between her father's fight with his stepfather and when he made the statement to her. As such, it was clear error for the district court to allow it into evidence as a "present sense impression" exception to the hearsay rule.
There is no evidence in the record as to the distance or how long it took her to get there.
As reflected by the 10-2 manslaughter verdict and the earlier mistrial, the evidence of the defendant's guilt in this matter is not compelling, resting entirely upon the identification of a self-described junkie who acknowledged that he identified the defendant as the shooter to deflect suspicion from himself and only after he was incarcerated on other charges so that cooperating with the State was to his benefit. Beyond Mr. Sylve's problematic identification of the defendant as the shooter, there is no evidence connecting the defendant to the shooting. In this scenario, the introduction and/or reference to inadmissible hearsay suggesting that Mr. Sylve's identification testimony was corroborated by Crimestopper tips and that which provided the defendant with a motive (Ms. Salvant testimony that the victim told her two days before the shooting that he (the victim) had called 911 "because he got into an altercation with Curtis and that Trae and Curtis was going to kill him") does not constitute harmless error.
See e.g. , State v. Parks , 08-423, pp. 11-12 (La. App. 5 Cir. 11/25/08), 2 So.3d 470, 477 :
Conduct or declarations of the decedent shortly before his killing may sometimes be admissible as tending to show the immediately antecedent circumstances explanatory of the killing and connecting the defendant with it. State v. Leonard , 05–42 at 16, 910 So.2d at 987. However, hearsay evidence showing the victim's state of mind for the purpose of proving the motive of the defendant is inadmissible, since its prejudicial effect on the defendant far outweighs its probative value as to the victim's state of mind. Id.
Conclusion
Because the defendant's conviction is based on inadmissible hearsay evidence that, under the circumstances of this case, cannot be construed as harmless error, the defendant's conviction is reversed. We pretermit discussion of the defendant's remaining assignments of error.
REVERSED.
LOBRANO, J., DISSENTS WITH REASONS
JENKINS, J., CONCURS IN THE RESULT
LOBRANO, J., DISSENTS WITH REASONS.
I respectfully dissent from the majority's opinion reversing the manslaughter conviction of the defendant Trae Williams ("Defendant"). For the reasons that follow, I would affirm the verdict reached by the jury as well as the sentence imposed by the district court below.
Defendant was convicted for the shooting death of Eddie Salvant, III ("Victim"), that occurred on April 9, 2014. An eyewitness ("Eyewitness") testified that he saw Defendant shoot Victim.
Victim's daughter ("Daughter") testified that Curtis Williams, Sr. ("Mr. Williams") was Victim's stepfather and is Defendant's grandfather and that Mr. Williams was married to her grandmother, Verna Williams ("Mrs. Williams"). Defendant's father, Curtis Williams, Jr., was incarcerated at the Louisiana State Penitentiary at Angola for attempted murder at the time of trial. Daughter testified that Mr. Williams had raised Defendant and that Defendant and Mr. Williams were very close and protective of one another. They both lived in the same house with Mrs. Williams. Mrs. William was deceased at the time of the trial.
Testimony revealed that Mr. Williams and Defendant had a known adversarial familial relationship with Victim and there was strife in the family, particularly between Victim and Mr. Williams. Daughter explained that Victim had a very close relationship with his mother, Mrs. Williams, but Victim and his stepfather, Mr. Williams, never got along.
Victim visited his mother's house daily to help take care of her.
Eyewitness had friends who lived in the area of the murder and had known the parties involved for some time. Eyewitness also testified that tension and problems had existed between Defendant and Victim for many years. Daughter collaborated this testimony that a long-standing conflict had existed between Victim and Defendant and testified that such an adversarial relationship also existed between Victim and Mr. Williams.
Daughter testified that two days before her father's murder, Victim called her and was very angry. When Daughter was asked what Victim told her on the telephone, the defense objected to this testimony as hearsay. The district court overruled the objection and allowed the testimony of the telephone call finding that Daughter's testimony fell under the "present sense impression" exception to the hearsay rule pursuant to La. C.E. art. 803(1). Daughter then testified that Victim said that Defendant and Mr. Williams just had an altercation with him. Daughter told Victim that she was on her way, arriving at Victim's apartment shortly thereafter. Upon her arrival, Victim told her that he had called 911 because Defendant and Mr. Williams were going to kill him. The defense did not object to this testimony. It did, however, object when the following question was asked:
La. C.E. art. 803(1) provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
Q: And after that, did - - what transpired between you and your dad regarding this incident?
A: He basically just told me, like, why the - - why the incident happened. He said that - -
Ms. Thompson:
Objection. It's no longer present sense impression.
Although the district court did not rule on the objection, the State did not respond and changed its line of questioning.
In addition, the defense objected to a statement made by the State during opening statement and a question asked by the State to Detective Kent during direct examination, both referring to Crime Stopper tips. The district court sustained the defense objection as to the State's question to Det. Kent and jury never heard any testimony regarding Crime Stopper tips.
The majority reverses the manslaughter conviction and finds that the following testimony and statements were erroneously admitted into evidence as hearsay: (1) the testimony of Daughter as to Victim's telephone call to her two days before the murder where Victim stated that he just had a fight with Defendant and Mr. Williams; 2) the testimony of Daughter as to her conversation with Victim at his apartment after the telephone call where Victim stated that he called 911 and thought that Defendant and Mr. Williams were going to kill him; and (3) the references to Crime Stopper tips in the State's opening statement and question during direct examination. The majority finds that Defendant's "conviction is based on [this] hearsay evidence" that "cannot be construed as harmless error."
I disagree with the majority and I find that, even assuming that the district court erroneously allowed the admissions of hearsay evidence, such admissions were harmless error. "A reversal of a defendant's conviction is appropriate only if, pursuant to a harmless error analysis, there is "a reasonable possibility that the evidence might have contributed to the verdict." State v. Skipper, 11-1346, p. 10 (La.App. 4 Cir. 10/10/12), 101 So.3d 537, 544 (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ; State v. Gibson, 391 So.2d 421, 426-27 (La. 1980) ). Furthermore, in making this determination, "importance of the evidence to the State's case, the presence or absence of additional corroboration of the evidence, and the overall strength of the State's case" are factors that should be considered. State v. Weber, 02-0618, p. 21 (La.App. 4 Cir. 12/4/02), 834 So.2d 540, 554 (citing State v. Wille, 559 So.2d 1321, 1332 (La. 1990) ). Nevertheless, " ‘even if testimony is inadmissible hearsay, if it is merely cumulative or corroborative of other testimony adduced at trial, then the admission of the hearsay is harmless.’ " State v. Hamdalla , 12-1413, p. 12 (La.App. 4 Cir. 10/2/13), 126 So.3d 619, 625 (quoting State v. McIntyre , 381 So.2d 408, 411 (La. 1980) ).
I find the admission of Daughter's testimony regarding the conversations she had with Victim two days before his murder revealing that Defendant and Mr. Williams had a hostile relationship with Victim and that he was in fear of his life was harmless error. Testimony based on personal knowledge of Eyewitness and Daughter collaborated that Defendant and Mr. Williams had a long-standing, well-known, adversarial familial relationship with Victim. Daughter testified that Defendant and Mr. Williams were very close and protective of each other. Various testimony of familial relationships characterized as adversary and as protective were undisputed at trial. Daughter testified, without objection, to the history of animosity existing with Defendant and Mr. Williams on one side and Victim on the other due to family issues. Eyewitness corroborated this testimony about their adversary relationship.
In addition, the two references to Crime Stopper tips were not evidence and, at best, were vague and ambiguous. The jury heard nothing about what the Crime Stopper tips may have revealed and, thus, was not hearsay evidence on which the majority can rely to reverse Defendant's conviction.
Moreover, I find that the majority errs by giving no weight to the uncontroverted testimony of Eyewitness. Credibility determinations, as well as the weight attributed to the evidence, are soundly within the province of the fact finder. State v. Scott , 12-1603, p. 11 (La.App. 4 Cir. 12/23/13), 131 So.3d 501, 508. A jury may accept as true the testimony of any witness, even a single witness, and find such testimony sufficient to establish each essential element beyond a reasonable doubt. State v. Clements , 15-0630, p. 7 (La.App. 4 Cir. 5/4/16), 194 So.3d 712, 717, writ denied, 16-1069 (La. 5/12/17), 220 So.3d 747. "The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction." State v. George, 15-1189, p. 10 (La.App. 4 Cir. 11/9/16), 204 So.3d 704, 711, writ denied, 16-2242 (La. 3/24/17), 216 So.3d 814. Thus, I find that the majority impinged on the jury's fact-finding function by discrediting Eyewitness' testimony.
Based on the evidence presented at trial, it is likely that the jury chose to believe the uncontested testimony of Eyewitness, which is soundly within its province. As we stated in Clements , 15-0630, pp. 7-8, 194 So.3d at 717 :
[W]e are highly deferential to the findings of the trier of fact. See State v. Armstead, 14-0036, p. 11 (La.App. 4 Cir. 1/28/15), 159 So.3d 502, 512. Thus, the jury may accept as true the testimony of any witness, even a single witness, and find such testimony sufficient to establish each element of an offense beyond a reasonable doubt. See State v. Sanchell, 11-1672, p. 6 (La.App. 4 Cir. 10/31/12), 103 So.3d 677, 680. Our review will only impinge on this fact-finding function to the extent necessary to assure compliance with Jackson v. Virginia . See State v. Macon, 06-481, p. 8 (La. 6/1/07), 957 So.2d 1280, 1285. Thus, we will only tread on a jury's presumed acceptance of a witness's testimony when that testimony is implausible or clearly contrary to the evidence. See [State v. ] Mussall , [87-2535 (La. 4/11/88) ] 523 So.2d [1305] at 1311 ; see also Armstead, 14-0036, p. 12, 159 So.3d at 512. [Emphasis in original.]
From his initial statement to Det. Kent, claiming to have seen the shooting, Eyewitness identified Defendant as the shooter and never wavered, contrary to Defendant's argument that Eyewitness lied in all his statements in order to clear his name and make a deal with the State for sentencing leniency on his burglary and drug charges. Furthermore, Det. Kent's testimony verified Eyewitness' steadfast assertion that Defendant shot Victim, indicating that Eyewitness initially identified Defendant as the shooter on May 8, 2014, before any plea deal was offered by the State.
The jury heard Eyewitness under direct examination admit that he was a heroin addict and was waiting for his drug dealer to arrive at the time of the shooting; he did, however, testify that he was sober at the time of the shooting and had been clean since his release from jail. He readily disclosed that he identified Defendant as the shooter only after he heard that Defendant's family was claiming that he himself was the actual shooter. Eyewitness was candid about his extensive criminal history and years using drugs. Eyewitness testified that he had been labeled a "rat" on the streets and could no longer visit the area where he witnessed the shooting. He also stated that he did not want to be testifying at trial because of the stigma associated with testifying about the murder committed by Defendant, but had to tell the truth.
Eyewitness testified:
I'm not taking a charge for nobody. I'm--I might be a burglar...
But I'm no murderer. That's a big difference.
The trial testimony further demonstrates that the defense had and took the opportunity to vigorously and extensively cross-examine Eyewitness to show his potential bias and prove he was lying. The defense questioned Eyewitness at length on the benefits of the plea agreement reached with the State, comparing the sentence he received under the agreement to the maximum sentence he might have served had he been convicted of the charges he was facing.
Based on the evidence presented at trial, the jury chose to believe the uncontested testimony of Eyewitness, which is soundly within its province. The strength of the State's case rested on the testimony of Eyewitness. Defendant failed to refute this testimony. In addition, the jury heard from both Daughter and Eyewitness that Victim and Defendant did not get along. Thus, I find that the majority impinged on the jury's fact-finding function by discrediting Eyewitness' testimony, which was sufficient to support the jury's verdict of manslaughter. I find that admission of Daughter's testimony and the references to Crime Stopper tips constitute harmless error and would not require a reversal Defendant's conviction on that basis.
Nonetheless, I find that the telephone call between Daughter and Victim clearly falls under the "present sense exception" to the hearsay rule pursuant to La. C.E. art. 803(1). The call by Victim was made immediately after the altercation between Victim and Defendant and Mr. Williams and while Victim was still very angry. "In determining whether a statement qualifies as a present sense impression exception to the hearsay rule, the critical factor is whether the statement was made while the declarant was perceiving the event or immediately thereafter." State v. Francois , 13-0616, p. 20 (La.App. 5 Cir. 1/31/14), 134 So.3d 42, 56. Here, Daughter's testimony indicates that the telephone call from her father was made immediately after the subject altercation. In any event, as discussed above, any error by the district court admitting this testimony was harmless.
As for the hearsay testimony of Daughter, that Victim told her at his apartment that he feared for his life and thought Defendant and Mr. Williams were going to kill him, the defense failed to object to its admission and, thus, this issue was not preserved for appeal.
A contemporaneous objection is necessary to afford the district court an opportunity to prevent or cure any error, and the defense is limited on appeal to those grounds articulated at trial. La. C.Cr.P. art. 841 ; State v. Keys, 12-1177, p. 13 (La.App. 4 Cir. 9/4/13), 125 So.3d 19, 31 (citing State v. Baker, 582 So.2d 1320, 1336 (La.App. 4 Cir.1991) ). It is well-settled that where a defendant fails to preserve an issue for appeal pursuant to Art. 841, this court will refuse to review or consider that issue. State v. Ramirez, 13-1554, p. 9 (La.App. 4 Cir. 11/12/14), 154 So.3d 636, 641 (reviewing the testimony of two law enforcement officers for hearsay where the defendant objected to their testimony but declining review of a third officer's testimony where the defendant did not object); Keys, 12-1177, p. 13, 125 So.3d at 31 (refusing to review identification testimony for hearsay where the defendant did not object to the testimony on that basis when it was introduced). Thus, because this issue was not preserved for appeal, the majority errs by relying on it to support a reversal of Defendant's conviction.
However, even if this issue were preserved for appeal, this testimony falls under the "state of mind exception" to the hearsay rule pursuant to La. C.E. art. 803(3) and is in line with cases allowing extrajudicial statements of a decedent made shortly before the crime.
The majority relies on State v. Parks, 08-0423, p. 12 (La.App. 5 Cir. 11/25/08), 2 So.3d 470, 477 for the proposition that: "[H]earsay evidence showing the victim's state of mind for the purpose of proving the motive of the defendant is inadmissible, since its prejudicial effect on the defendant far outweighs its probative value as to the victim's state of mind," quoting State v. Leonard, 05-0042, p. 16 (La.App. 5 Cir. 7/26/05), 910 So.2d 977, 987. This reliance, however, is misplaced. Parks recognized that "non-testimonial" statements by a victim, i.e., statements made to someone other than the police, that were informal and without coercion, and that the witness had no expectation that the statements would be of later use to help establish that defendant committed a crime, could be admissible under the "state of mind" hearsay exception found in La. C.E. art. 803(3). Parks, 08-0423, p. 16, 2 So.3d at 479-80. The Parks court found that the victim's statements made to her niece shortly before her murder were admissible to establish the victim's immediate fear of the defendant. Id. I find the same is true in the instant case.
I find further support in State v. Magee, 11-0574 (La. 9/28/12), 103 So.3d 285. There, the defendant was convicted of first degree capital murder for the deaths of his estranged wife and minor son. At trial, the district court allowed the testimony of the victim's cousin describing a conversation the witness had with the victim three days before the murder after the victim met the defendant to retrieve their children following a weekend the children had spent with their father. When the victim and the children had arrived back at the house, the witness testified that the victim was visibly upset and shaking. Over defense objection, and pursuant to La. C.E. art. 803(3), the witness testified that the victim "was very scared and nervous. She said she was afraid the he was going to hurt her." Id. , 11-0574, pp. 47-48, 103 So.3d at 319.
In finding no error in the admission of this testimony, the Supreme Court stated
This court has recognized that extrajudicial statements of a decedent made shortly before the crime that are relevant to the circumstances immediately preceding the murder are admissible under
the state of mind exception. Admission in this instance is "based upon the expedient rule sometimes relied upon in homicide cases that ‘conduct or declarations of the decedent shortly before his killing may sometimes be admissible as tending to show the immediately antecedent circumstances explanatory of the killing and connecting the accused with it.’ " State v. Weedon, 342 So.2d 642, 646 (La.1977), quoting State v. Raymond, 258 La. 1, 245 So.2d 335, 342 (1971) (Tate, J., concurring).
Id. , 11-0574, p. 48, 103 So.3d at 319. The Court noted that the exception to hearsay is based on the belief that a spontaneous expression of a declarant's condition at the time the statement is made is generally a reliable indicator of the declarant's state of mind. 2 MCCORMICK ON EVIDENCE § 274 (6th ed. 2006) ("[T]he special assurance of reliability for statements of present state of mind rests upon their spontaneity and resulting probable sincerity.") Id. , 11-0574, p. 43, 103 So.3d at 316.
Because the district court did not err in admitting Daughter's testimony regarding Victim's existing fearful state of mind and his present sense impression of the altercation and, because any error in the admission of evidence was harmless, Defendant was not deprived of the right to confront witnesses against him, to due process, and to a fair trial. The district court's evidentiary rulings do not undermine the reliability of the jury's verdict in this case
Finding no merit to any of the errors assigned by Defendant on appeal, I would affirm Defendant's conviction and sentence. Therefore, I respectfully dissent.